Danielson et al v. Tropical Shipping And Construction Co., Ltd. et alMOTION for Request for Judicial Notice re Defendant's MOTION to Dismiss 94 Amended Complaint, and Incorporated Memorandum of LawS.D. Fla.November 16, 2018UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 1:17-cv-20704-KMW LEROY DANIELSON; and TRADEMARK ENTERPRISES, LLC d/b/a Lisa’s Paint Shop, on behalf of themselves and all others similarly situated, Plaintiffs, v. TROPICAL SHIPPING AND CONSTRUCTION CO., LTD.; VI CARGO SERVICES, LLC; and CARIBTRANS LOGISTICS, LLC, Defendants. ___________________________________________/ DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE AMENDED CLASS ACTION COMPLAINT In support of Defendants’ Motion to Dismiss the Amended Class Action Complaint, filed simultaneously with this Request on November 16, 2018, Defendants Tropical Shipping and Construction Co., Ltd. (“Tropical”), VI Cargo Services, LLC and Caribtrans Logistics, LLC (collectively, “Defendants”) request that the Court take judicial notice of the fact that pursuant to federal statutes and regulations, Tropical is a water carrier which files tariff rates with the Surface Transportation Board (“STB”), an agency of the federal government, for Less than Container Load (“LCL”) shipping between Florida and St. Croix, U.S. Virgin Islands. In support of this Request for Judicial Notice, Tropical submits Exhibits 1 through 6 with the accompanying Declaration of Thomas Jones, Pricing Manager at Tropical, sworn to on November 15, 2018. As is evident from the face of the documents, and confirmed by the Declaration, these exhibits are rate tariff filings Tropical publicly filed with the STB, pursuant to the statutory and regulatory requirements, and the STB’s corresponding acknowledgments of electronic filing. Case 1:17-cv-20704-KMW Document 100 Entered on FLSD Docket 11/16/2018 Page 1 of 4 2 MEMORANDUM OF LAW At the July 19th hearing on Defendants’ motion to dismiss the prior complaint in this action, this Court raised the possibility of judicially noticing that Tropical is a “water carrier” filing LCL shipping rates with the STB. (7/19/18 Tr. at 20) [ECF No. 93]. As the Supreme Court has stated, “courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (citing 5B C. Wright & A. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004 & Supp. 2007)); see also Lozman v. City of Riviera Beach, Fla., 713 F.3d 1066, 1076 n. 9 (2013) (same). A court may take judicial notice of a fact not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b). It is well settled that courts may take judicial notice of public documents filed with a governmental body. See, e.g., Allstate Ins. Co. v. Estate of Robert M. Levesque, No. 8:08-CV-2253-T33EAJ, 2010 WL 2978037, at *1 (M.D. Fla. July 19, 2010) (taking judicial notice of documents on file with the Division of Corporations); Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1280 (11th Cir. 1999) (“For the foregoing reasons, we hold that the district court was authorized at the motion to dismiss stage to take judicial notice of relevant public documents required to be filed with the SEC, and actually filed, for the purpose of determining what statements the documents contain.”). In support of their Motion to Dismiss the Amended Class Action Complaint, and particularly in support of the arguments that all claims against Tropical should be dismissed as preempted by the filed rate doctrine or because they are within the primary jurisdiction of the STB (Points I and II), Defendants rely on the fact that Tropical is a “water carrier” required to file tariff rates with the STB pursuant to federal statutes and regulations. Federal statutes vest the STB with “jurisdiction over transportation insofar as water carriers are concerned,” including water carriers in the noncontiguous domestic trade such as Tropical. 49 U.S.C. § 13521. The provisions of 49 U.S.C. § 13702 require water carriers such as Tropical to “publish and file with the Board tariffs containing the rates established for such Case 1:17-cv-20704-KMW Document 100 Entered on FLSD Docket 11/16/2018 Page 2 of 4 3 transportation or service” in “noncontiguous domestic trade.” The statute does not distinguish between Less than a Container Load shipments and Full Container Load shipments. As summarized in the accompanying Declaration of Thomas Jones, pursuant to 49 CFR § 1312 (“Regulations for the Publication, Posting and Filing of Tariffs for the Transportation of Property By or With a Water Carrier in Non-Contiguous Domestic Trade”), Tropical electronically files tariff rates with the STB for shipping services between Florida and St. Croix, U.S. Virgin Islands, including for LCL shipments. In support of this Request for Judicial Notice, Mr. Jones submits sample tariff filings Tropical electronically filed with the STB pursuant to those statutes and regulations (Exhibits 1, 3, 5), along with the STB’s acknowledgment of each of those rate filings (Exs. 2, 4, 6). Each of these rate filings lists Tropical as “Carrier” and includes Tropical’s STB account number for filing rates (22841). Each of these filings includes rates for certain shipments from Port of Palm Beach, Florida to St. Croix (STC). One of the rate filings specifically uses the term “LCL” in describing a rate. (Ex. 5). Another rate filing includes a rate listed in “cft” (cubic feet), which thus is a rate for LCL shipments, as opposed to the rate for a full container load which is not expressed in cubic feet. (Ex. 1). One of the rate filings includes a “General Rate Increase” between various ports of load (including Port of Palm Beach, Florida) and St. Thomas, St. Croix and St. John, U.S. Virgin Islands. (Ex. 3). The STB acknowledged each of those electronic tariff filings (Exs. 2, 4, 6), and their filing with this government agency is “not subject to reasonable dispute.” Fed. R. Evid. 201(b). Accordingly, judicial notice is appropriate. CONCLUSION For the foregoing reasons, Defendants respectfully request that in support of Defendants’ Motion to Dismiss the Amended Class Action Complaint. the Court take judicial notice of the documents submitted with the Jones Declaration and the fact that pursuant to federal statutes and regulations, Tropical is a water carrier which files tariff rates with the Surface Transportation Board (“STB”), an agency of the federal government, for Less than Container Load (“LCL”) shipping between Florida and St. Croix, U.S. Virgin Islands. Case 1:17-cv-20704-KMW Document 100 Entered on FLSD Docket 11/16/2018 Page 3 of 4 4 DATED: November 16, 2018 Respectfully Submitted, GREENBERG TRAURIG, P.A. 333 SE 2nd Avenue Miami, FL 33131 Telephone: (305) 579-0500 Facsimile: (305) 579-0717 /s/ Adam M. Foslid Adam M. Foslid Florida Bar No. 682284 Foslida@gtlaw.com Stephanie Peral Florida Bar No. 119324 Perals@gtlaw.com GREENBERG TRAURIG, LLP MetLife Building 200 Park Avenue New York, New York 10166 Telephone: (212) 801-9200 Facsimile: (212) 805-9371 /s/ Stephen L. Saxl Stephen L. Saxl (admitted pro hac vice) Saxls@gtlaw.com Emily A. Sickelka (admitted pro hac vice) Sickelkae@gtlaw.com Counsel for Defendants Case 1:17-cv-20704-KMW Document 100 Entered on FLSD Docket 11/16/2018 Page 4 of 4
